How does making law through private lawsuits differ from making law by other means? That question is especially important where legislators deputize “private attorneys general” as statutory enforcers, from antitrust and securities to civil rights and consumer ...READ MORE

The Constitution allocates entitlements not only to individuals, but also to institutions such as states and branches of the federal government. It is familiar fare that individuals’ entitlements are routinely deployed both as shields against unconstitutional action ...READ MORE

Law has been trapped in a stylistic straitjacket. The Internet has revolutionized media and communications, replacing text with a dizzying array of multimedia graphics and images. Facebook hosts more than 150 billion photos. Courts spend millions on ...READ MORE

Eminent domain receives enormous amounts of scholarly and popular attention, and for good reason—it is a powerful form of government coercion that cuts to the heart of ownership. But a mirror-image form of government coercion has been ...READ MORE

States have traditionally offered support to their fiscally distressed municipalities. When less intrusive forms of assistance fail to bring stability, some states employ supervisory institutions that exercise approval authority over local budgets or, more intrusively, displace locally ...READ MORE

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, ...READ MORE

All theories of statutory interpretation rely on an idea of how Congress operates. A commonly held supposition among scholars is that the procedures used in the creation of legislation are unsophisticated and almost anarchic. This supposition ...READ MORE

Tort law is often seen as a tool for protecting privacy. But tort law can also diminish privacy, by pressuring defendants to gather sensitive information about people, to install comprehensive surveillance, and to disclose information. And the ...READ MORE

What obligations does a state have after it forcibly overthrows the regime of another state or territory? The Hague Regulations and the Fourth Geneva Convention provide some answers, but their prohibition on interfering with the governing structure of ...READ MORE

One of the great ironies about information privacy law is that the primary regulation of privacy in the United States has barely been studied in a scholarly way. Since the late 1990s, the Federal ...READ MORE

Although scholars have long debated the scope of the President’s power to decline to defend statutes challenged in litigation, no one has yet undertaken a systematic examination of nondefense by state executives, who, like their federal counterparts, ...READ MORE

Election law doctrine has long been dominated by rights-and-interests balancing: the weighing of the rights burdens imposed by electoral regulations against the state interests that the regulations serve. For the last generation, the election law literature ...READ MORE

This Article analyzes the federal courts’ power to provide public remedies when the legislature has been silent. Like private parties, the United States and the states regularly claim a right to judicial relief or a particular remedy that ...READ MORE

In the ongoing discussions about financial services regulation, one critically important topic has not been recognized, let alone addressed. That topic is what this Article calls the “entity-centrism” of financial services regulation. Laws and rules are entity-centric ...READ MORE

Patent trolls are increasingly blamed for the growing costs of patent litigation and seemingly excessive damages awards and patent royalties. There is much to support these allegations. Trolls now account for a majority ...READ MORE

Predatory pricing is a two-step strategy for securing monopoly profits. During the first step—the predation stage—a firm charges a price below its costs in the hope of driving its competitors out of the market by forcing them ...READ MORE

Charles Reich’s visionary 1964 article, The New Property, paved the way for a revolution in procedural due process. It did not, however, accomplish Reich’s primary stated goal: providing those dependent on government assistance the same security that ...READ MORE

Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener. In Aristotle’s classic treatment, it exists in parallel to logical argument, which appeals to deductive or inductive reasoning, and ...READ MORE

This Article demonstrates that all intellectual property defenses fit into three conceptual categories: general, individualized, and class defenses. A general defense challenges the validity of the plaintiff’s intellectual property right. When raised successfully, it annuls ...READ MORE

It is often said that the legal touchstone of agency independence is whether agency heads are removable at will or only for cause. Yet this condition is neither necessary nor sufficient for operational independence. Many important agencies ...READ MORE